Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - First offenders - Suspension of sentence - General principles - Youthful offender - Crimes of dishonesty - Whether 12 months' imprisonment all suspended manifestly inadequate.

Griffiths v R [1977] HCA 44; (1977) 137 CLR 293; Malvaso v R [1989] HCA 58; (1989) 168 CLR 227; Dinsdale v R [2000] HCA 54; (2000) 74 ALJR 1538; Lahey v Edwards 46/1967, [1967] Tas SR (NC 13); Jones v Fleming [1957] Tas SR 1; Lahey v Sanderson [1959] Tas SR 17, applied.

Judgment Number: [2001] TASSC 27

HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v TOBY EDWARD KIM BLACKLER

HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v TOBY EDWARD KIM BLACKLER

1 On 13 February 2001, the respondent was sentenced to 12 months' imprisonment, all of which was suspended on a condition that he be of good behaviour for a period of 2½ years. In addition, a probation order was made, which included the same condition and another requiring him to submit to such medical, psychological or psychiatric testing, assessment or treatment as may be directed by a probation officer. The sentence was imposed with respect to four counts of stealing, seven counts of uttering, one count of burglary and one count of motor vehicle stealing. The Crown appealed against the sentence on one ground, that being that it was manifestly inadequate having regard to all the circumstances of the case.

2 The offences were committed in two series, the first involving the theft of two cheque books on 15 May 2000 and the subsequent forging and uttering of seven of the cheques between that day and 1 June 2000. The second involved events between 18 and 19 August 2000, when he unlawfully used a motor vehicle, placed on it number plates he stole from another vehicle, and then burgled premises and stole property from it, using the first vehicle to carry the property away.

3 It is convenient to refer to what was said by the learned sentencing judge concerning the substance of the circumstances of the offences and the offender:

"In the latter period of your schooling, you became a regular marihuana user and by your final school year, your social group was dominated by illicit drug users. Whilst at university, where you were studying for an Arts/Law degree, you were introduced to amphetamines and became a serious drug abuser. By mid-1999, you were an intravenous drug user and had become involved with a friendship group permeated by drug abuse and the sort of criminal conduct which that vice inevitably leads to. In need of money to fund the lifestyle you had embarked upon, in May 2000, you stole two cheque books, the property of St David's Cathedral where your father was the Dean. Over the following fortnight, you forged seven cheques from the stolen cheque books for amounts totalling $24,650. You caused the cheques to be presented and the bank honoured six of them. This enabled you to fraudulently obtain $23,790. That amount has not been recovered.

Some three weeks after the above escapade, police interviewed you about the forged cheques and you denied any involvement in what had occurred. Undaunted by that experience, in August 2000, you burgled the premises of a former employer, a community radio station, and stole equipment valued at in excess of $15,000. To facilitate the removal of the proceeds to an associate's residence, you stole a motor vehicle. In the course of these offences, you caused damage totalling about $700 to the station premises and the motor vehicle. With the exception of a vacuum cleaner, all the stolen property was recovered. The day after these offences you were interviewed by police and admitted your involvement.

The manner of your commission of these crimes does not bear the signs of ineptitude and muddled planning often associated with the offences of those desperate to fund a drug addiction. You used considerable guile in an endeavour to avoid detection. Whilst I do not doubt that your abuse of drugs played a significant part in the events which brought about your criminal conduct, I am satisfied that other relevant factors are simple greed, bad company and your desire to impress that company.

You are 20 years of age and have no prior convictions. You have the capacity to do well academically and have manifested a variety of worthy qualities. For several years, you worked in a voluntary capacity for a community radio station. In the course of that involvement, you acquired the skills to take on the position of station production co-ordinator, a position you held until the nadir of your involvement with drugs prompted your resignation. You have shown yourself to be industrious and to have a good aptitude for and attitude to work. Your referees describe you as considerate, reliable and resourceful.

You will forever bear the consequences of these crimes. The disgrace you have brought upon yourself is compounded by the circumstance that two of your victims were entities with which you formerly enjoyed a close relationship. These convictions will effectively bar you from a vocation in law, the career path you initially set out on.

Since the detection of your crimes, you have shown remorse. You have regained the support of your family, returned to live at home, pursued employment, cut your ties with those leading you astray and taken positive steps to overcome your addiction to drugs."

4 Although the respondent was 20 years of age when sentenced, he was 19 years old at the time of the offences.

5 One matter not mentioned by the learned judge in his comments on passing sentence, perhaps deliberately, was referred to in a letter from a police officer which was passed to his Honour by the respondent's counsel without comment. It referred (inter alia) to the fact that the respondent had supplied information to the police concerning the commission of certain offences, which had since been used, and continued to be used, as part of ongoing police operations. The learned judge was entitled to give some mitigatory effect to that information.

6 In the course of expressing his reasons for determining to impose a wholly suspended sentence of imprisonment, the learned judge said that the magnitude of the offences warranted the imposition of a sentence of 12 months' imprisonment but, on balance, his Honour was satisfied that an immediate custodial penalty was not needed. "There is reason to anticipate that you will not re-offend and in that situation it is desirable, where appropriate, not to send a young first offender to prison", his Honour said.

7 At the hearing of the appeal, neither the Director of Public Prosecutions nor counsel for the respondent suggested that the sentence of 12 months' imprisonment was an inappropriate one. The issue of greatest substance concerned whether the whole of the sentence should have been suspended or, more accurately stated, whether the suspension of all of it rendered the sentence so manifestly inadequate justifying intervention by this Court.

8 When the sole ground of an appeal against sentence is manifest inadequacy in the sentence itself, the function of the Court of Criminal Appeal is to consider the material facts placed before the sentencing judge by counsel for the Crown and the offender respectively, and to determine whether, in the view of the members of the Court, the sentence was manifestly inadequate to the extent that it revealed an "error in point of principle". Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 at 310; Malvaso v R [1989] HCA 58; (1989) 168 CLR 227 at 234. The ground of appeal makes no attack on anything said by the learned sentencing judge or the failure of the judge to say anything. It includes no assertion that the judge inappropriately took into account certain matters or failed to take into account relevant considerations, or that excessive, insufficient or undue emphasis was placed on a matter. The ground attacks the inadequacy of the sentence itself and nothing else.

9 It was said by Barwick CJ in Griffiths v R (supra) that:

"... an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons."

As a result of judicial pronouncements of that kind at the highest level, a consequence is that when the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. Dinsdale v R [2000] HCA 54; (2000) 74 ALJR 1538 at 1549. Nevertheless, it is the duty of an appellate court to interfere where it is necessary to avoid such a manifest inadequacy in sentence or inconsistency in sentencing standards that the error is of such gravity that it is essential in the administration of justice that the error be corrected. Khan (1996) 86 A Crim R 552 at 553.

10 "Sentencing is an art and not a science". Wise v R [1965] Tas SR 196 at 200. There is, of course, a general requirement for consistency in sentencing, but in almost all of the cases which come before the criminal courts, it is impossible to arrive at the appropriate sentence as if it was an inevitable conclusion following a comparison of the case with other cases in which sentences have been imposed and a strict and logical application of sentencing rules. As long ago as 1967, Burbury CJ in Lahey v Edwards 46/1967 at 4, [1967] Tas SR (NC 13) said:

"But the principle of individualisation of punishment is now firmly established - even if we do not completely accept the aphorism that a modern Court punishes the criminal and not the crime ... It is for the sentencing tribunal to weigh all the varying factors relating to the circumstances of the particular offence and the individual who commits it and to exercise a judicial discretion. It all comes down to the simple proposition that the choice of the appropriate punishment is not a matter of rule - it is a matter of a wide judicial discretion."

11 A major sentencing principle, with regard to whether the respondent should have been ordered to immediately serve at least some of the sentence of 12 months' imprisonment, arose out of his youthfulness. The learned sentencing judge considered that there was reason to anticipate the respondent would not re-offend and that it was desirable, if it was appropriate, not to send a first offender to prison. The suspension of the imprisonment, the conditions of the suspension and the conditions of the probation order, had as their object his rehabilitation.

12 Considerations arising out of youthfulness, particularly in the case of a first offender, commonly persuade a sentencing tribunal to impose a sentence of less severity than one which might have been expected in the case of an older offender and to place greater emphasis on rehabilitation than on punishment and denunciation. In Jones v Fleming [1957] Tas SR 1 at 4 and 5, Burbury CJ was considering the case of a 19 year old charged with a crime of dishonesty, when he said:

"The modern approach to the juvenile offender as recognized by the courts implies the realization that a juvenile offender should be given every reasonable opportunity to reform, rather than that he should be exposed to the possible corrupting influence of other inmates of the gaol and thereby be set on a path of crime. ...

In the case of a young man of this age who has had no previous conviction involving dishonesty or previous conviction of a serious crime, he should not be sent to gaol unless the nature of his crime is such that it is clearly the duty of the court to give effect to the deterrent aspect of punishment as outweighing other factors."

13 The Chief Justice elaborated on what he had said in Lahey v Sanderson [1959] Tas SR 17 at 21, when dealing with the case of a 20 year old:

"It is because the public interest is best served if an offender is induced to turn from criminal ways to an honest living that a court rarely sends a youth to gaol except in the case of crime of considerable gravity (such as a crime involving violence), or in the case of a persistent offender who has shown himself not amenable to disciplinary methods short of gaol. The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed. There has accordingly been a universal acceptance by the courts in England, Australia, and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed. It has been said by Lord Goddard, the former Lord Chief Justice of England, that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility. With that I respectfully agree."

14 In R v Mather [1962] Tas SR 25 at 26, Burbury CJ accepted that the crimes of which a youthful offender is convicted may be so serious that the court may have a clear duty to imprison as a deterrent, both to the particular offender and to others who may be minded to commit similar crimes. His Honour also accepted that such a course may be appropriate in the case of a youth who has been convicted of multiple crimes over a period of time, rather than as part of a single youthful escapade.

15 The principles expressed by Burbury CJ have consistently been applied by the courts in this State and in other jurisdictions. In some cases, however, and this is such a case, it is difficult for a sentencer to determine which side of the imprisonment line it should be placed. Imprisonment is a punishment of last resort, one reserved for the serious cases, and more so for a young offender. Rehabilitation cannot be achieved through imprisonment in many cases and the fear with a young offender is that imprisonment has the potential for further corruption and may ensure that the youth embarks on a path of crime. If leaving out of prison a young person who has not previously appeared in a court for offences results in the offender not re-offending, then the public will have been well served by the sentence which was selected. If, in breach of a sentence of imprisonment suspended on a condition of good behaviour, the offender re-offends within the period of suspension (in this case 2½ years), then the offender is likely to serve the imprisonment which was suspended, in addition to suffering punishment for the subsequent offence or offences. In such a case, what the public may regard as a "real" punishment, has not been avoided.

16 When the offences committed by a youthful offender are particularly serious, either because of their nature or because of the number of them, significant competing demands arise, particularly those of the public and victims of the crimes, for a "real" punishment, a sentence of retribution and denunciation, and a sentence of general deterrence.

17 It has been said time and time again, in courts throughout the country, that it is not the function of an appellate court to determine the sentence it would have imposed and to replace the original sentence with it. Having regard to the principles to which we have referred, namely the restraints which apply to an appellate court when hearing a sentencing appeal and particularly one lodged by the Crown, the wide discretion invested in a judge at first instance when sentencing and the desirability of rehabilitative sentences for young offenders where appropriate, we are unpersuaded that the Court should intervene in this case. The respondent may well have been fortunate not to have been sent immediately to prison. If he had been required to spend some time in prison, we doubt that he could have successfully appealed the sentence on the ground of manifest excessiveness, subject to the length of the term itself. His crimes, particularly when viewed collectively, were serious ones. But leniency alone is not enough for an appellate court to set aside a sentence and, on balance, we think that the respondent's sentence should be allowed to stand.

18 It was submitted by the Director of Public Prosecutions that if the offender had not had the advantages of the respondent, having been brought up with strong support provided jointly by his parents, having received a complete and successful education to year 12 and commenced a university degree, and having had other benefits in his life, he would have been sent immediately to prison. There is no basis for accepting that submission. It is our experience, based on observations over many years, that if an offender of the respondent's age comes before a court for the first time, having suffered considerable deprivations and disadvantages in his or her life up until the time of the commission of the offence or offences for which he or she is before the court, the fact that by that age the offender has not previously appeared before a court is usually given considerable weight, and leniency is commonly extended on that first occasion and often on subsequent occasions.